E-discovery: Congress might revise e-discovery rules again

On Dec. 13, Congress will hold hearings on the “Costs and Burdens of Civil Discovery.” It’s anyone’s guess which (if any) revisions to the existing e-discovery rules will be adopted. What is clear, however, is that Congress is focused on reducing e-discovery costs. One approach that Congress is considering is to inject additional expertise and know-how into the litigation process through e-discovery liaisons, e-discovery special masters and e-discovery mediators.

The e-Discovery Liaison

Unlike the current process (where each party’s counsel is responsible for presenting disputes regarding e-discovery directly to the court), the 7th Circuit’s Electronic Discovery Pilot Program (the e-Liaison Program) requires each litigant to designate an e-discovery liaison at the beginning of each case. The liaison is responsible for “meeting, conferring and attending court hearings” where e-discovery is an issue. The 7th Circuit program requires that the liaison be knowledgeable about the party’s computer systems, e-discovery efforts and cost-saving strategies; however, the e-Liaison Program does not mandate that the e-discovery liaison be a lawyer, computer technician or disinterested third-party. Selection of the liaison is left to each party.

The first phase of the Pilot Program is now completed, and the results were sufficiently positive to justify an expanded Phase II, which is now underway. The efficiencies of using an e-discovery liaison are obvious: The liaison brings preparation and knowledge to the Rule 26(f) conference and other e-discovery disputes. With a knowledgeable resource at hand, the parties will speak a common language and avoid the time-consuming and expensive processes of delayed meetings and negotiations prompted by counsel repeatedly having to check with more knowledgeable technical resources. The Pilot Program requires those resources to be front and center.

The e-Discovery Special Master

In the Western District of Pennsylvania, litigants select an e-master from a list of attorneys pre-qualified to serve as such based on their litigation, mediation and technology training. Unlike an e-liaison, an e-master holds hearings on e-discovery disputes and issues orders that may be appealed to the trial judge. Unlike a federal judge or magistrate, however, the e-master is permitted to interact with litigants ex parte and is paid hourly.

The virtue of this program is a rapid resolution of disputes by a knowledgeable, quasi-judicial figure. The key to many e-discovery disputes is simply and properly defining the issue or the problem, which can often suggest the answer. The e-discovery special master can also quickly see through the obfuscation, delay, exaggeration and hyperbole that often surround e-discovery issues and disputes. The special master brings expertise to the case and can cajole reasonableness from entrenched parties while nonetheless carrying a big stick.

The e-Mediator

The e-mediatory system is another suggestion for how the rules might change to reduce costs. Under this model, litigants:

Submit to mediation before a mediator with technical experience at the outset of the case

Bring representatives from their legal, IT and business units to the mediation

Each have a confidential caucus with the mediator

Create an e-discovery plan (with the assistance of the e-mediator), to be filed with the court along with the initial case scheduling order

Pay the e-mediator on an hourly basis

Do These Programs Work?

There are advantages and disadvantages to each new strategy. The fact that the e-master and e-mediation programs require litigants to split the costs for a third-party expert may add (rather than subtract) expense to the e-discovery process. Also, none of the above programs has been operating long enough to generate statistically valid empirical evidence about cost savings.

The e-Liaison Program garnered mixed reviews from the bench and bar — judges who participated in the program “overwhelmingly ... felt that the involvement of e-discovery liaisons contributes to a more efficient discovery process.” (Bay, M., “A Growing Trend: The Use of Special Masters,” Law Technology News, 11/23/11). However, only “43% of attorneys thought [e-liaisons] increased the fairness of the discovery process and 38% of attorneys thought [they] increased the parties’ ability to resolve e-discovery issues without court involvement.” (Schrodt, Keith, “The Seventh Circuit Electronic Discovery Pilot Program,” eDiscovery Insight, pg. 2).

The survey results from the e-Liaison Program suggest that while judicial economy is improved by the introduction of e-liaisons, litigants are not uniformly realizing a cost reduction or less conflict over e-discovery issues. Phase II should provide us with more empirical data.

Although no one can predict precisely how (or if) the e-discovery rules will change after Dec. 13, I can comfortably predict that any rules revision will require the involvement of people with e-discovery technical expertise early in the case, to foster cooperation and reduce costs. Regardless of any rule changes, in-house counsel and retained counsel should consider each of the above methods on an ad hoc basis if e-discovery costs are spiraling in their cases.